R v Ward - [2008] NZCA 328

IN THE COURT OF APPEAL OF NEW ZEALAND
CA369/2008
[2008] NZCA 328
THE QUEEN
v
DAVID JOHN WARD
Counsel:P J Davison QC for Applicant

T Epati for Crown

Judgment:28 August 2008 at 10.00 am
On the papers

JUDGMENT OF GLAZEBROOK J

THE APPLICATION FOR BAIL HAS BEEN GRANTED ON THE FOLLOWING CONDITIONS:
(a)That Mr Ward reside at Unit 658, Hyatt Residences, 6 Princes Street, Auckland; and
(b)That where Mr Ward is required to travel overseas for business, notification be provided in writing to the Crown, 14 days in advance of departure indicating a fixed return date.

____________________________________________________________________
[1] On 19 November 2007 Mr Ward was convicted of the following charges:
(a)one count of using a document with intent to defraud contrary to s 229A of the Crimes Act 1961;
(b)five counts of knowingly failing to provide information when required to do so with intent to evade the payment of tax contrary to s 143B of the Tax Administration Act 1994; and
(c)two counts of knowingly providing misleading information with intent to evade the assessment/payment of tax contrary to s 143B of the Tax Administration Act 1994.

[2]       On 30 May 2008 Mr Ward was sentenced to 12 months home detention on each charge to be served concurrently, plus 300 hours community work and reparation. Mr Ward appeals against these convictions and also against his sentence.
[3]       Pursuant to s 399(3) of the Crimes Act, the term of a sentence of home detention ceases to run on the day on which notice of appeal is given. However, this Court in R v Edwards [2008] NZCA 205 at [3] – [4] and R v Bisschop [2008] NZCA 229 at [11] referred to the apparent inconsistency between s 399(3) of the Crimes Act and s 80ZB of the Sentencing Act 2002. The latter provides that time ceases to run on a sentence of home detention only when the offender is released on bail pending the appeal. This Court also expressed concern about offenders sentenced to home detention becoming free of any constraint simply on the filing of an appeal. The Court stated that it is desirable and appropriate for those who seek suspension of home detention sentences pending appeal to seek bail.
[4]       Although Mr Davison QC, on behalf of Mr Ward, submits that it is not clear whether or not this Court has jurisdiction to grant bail, an application for bail is made out of caution. Mr Davison points out that s 70 of the Bail Act 2000 empowers this Court (and the Supreme Court) to grant bail to persons who are “in custody” and are appealing the conviction or sentence or both. However, under s 80A(5) of the Sentencing Act, an offender sentenced to home detention is not in custody while serving the sentence.
[5]       France J in Edwards did not, however, regard s 80A(5) as an impediment to this Court’s jurisdiction to grant bail pending appeal to an offender sentenced to home detention. I propose to follow that decision and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ward

Details

AGLC: R v Ward [2008] NZCA 328
Case: [2008] NZCA 328
Decision Date: 28 August 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeal of David John Ward against his conviction and sentence was heard and determined. Ward was convicted of using a document with intent to defraud, failing to provide information to evade tax, and providing misleading information to evade tax. He was sentenced to 12 months home detention, 300 hours community work, and reparation. The appeal concerns both the conviction and sentence. The legal issues before the court were whether the Court had jurisdiction to grant bail pending appeal and if it was in the interests of justice to do so. The court found that it did have jurisdiction to grant bail, following the decision in R v Edwards. The court then considered whether it was in the interests of justice to grant bail. The applicant's counsel argued that the appeal had strength, particularly due to fresh evidence that may impact the safety of the convictions. The applicant's counsel also submitted that Ward had been compliant with bail conditions previously and would continue to be so. The Crown did not oppose the grant of bail, given the issues concerning the effect of an appeal on a sentence of home detention. The court granted bail on the conditions that Ward reside at a specified address and notify the Crown 14 days in advance of any overseas travel for business. The court also granted an extension of time for the filing of submissions in relation to the appeal.

Orders